Hostile Work Environment Claims

By: Paul Ebeltoft

I frequently receive calls from people wishing to file suit because of a “hostile” or “abusive” work environment. Almost none know what a hostile or abusive work environment means in the law. Because human resource professionals often are the first to hear of and deal with hostile environment claims, it may be helpful to review the basic legal requirements.

First, the complaining employee must be a member of a statutorily protected class. That is, the offensive conduct must be related to the complaining employee’s race, color, religion, sex (whether or not the claim is of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), or sexual orientation. Retaliation for an employee’s lawful activity (such as being a witness for an EEOC complainant) can also meet this first test.

Second, not only must the complaining employee perceive the work environment as hostile or abusive, the employee must be able to show that a “reasonable person” would find the workplace to be hostile too. In other words, the workplace must be both subjectively and objectively hostile and abusive.

Third, if the complaining employee meets the first two tests, it is important to know if the employee is being required to endure the offensive conduct as a condition of continued employment or if the conduct is severe or pervasive. The latter case does not require a showing that the employee has suffered a mental meltdown, but the offensive conduct must be sufficiently severe and sufficiently pervasive to interfere unreasonably with the employee’s work performance.

Fourth, is the conduct such that your company may be liable? If a supervisor is responsible for the hostile environment, and the employee suffers a negative employment action (failure to hire, failure to promote, demotion or loss of benefits), the employer is generally found liable unless the employer reasonably tried to prevent and promptly correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The employer will generally be found liable for a hostile environment created by non-supervisory employees, or even non-employees over whom the company has control (e.g., independent contractors or customers on the premises), if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.

Fifth, in considering a hostile environment claim, a court will review the totality of workplace circumstances and weigh each in relation to the other. How often has the alleged offensive conduct occurred? Is the conduct somehow justified or otherwise excusable? Is the conduct reasonably categorized as severe or extremely serious? Was the employee physically threatened or humiliated? In other words, every case is different.

From the forgoing, it is easy to see that:

• Mere unpleasantness at the workplace is not actionable at law.
• Job performance requirements enforced by oafish bosses may not create a hostile work environment.
• Having a stressful job does not make your workplace hostile.
• A single, unhappy incident on the job likely will not create a hostile environment claim, unless the single incident is especially serious.

On the other hand, some may miss that:

• The victim may not be the person harassed, but only someone affected in the required ways by the wrongful conduct.
• Unlawful conduct does not have to result in actual economic or mental injury.

What HR Can Do.

Make sure that your employees know that misconduct of a sort that creates a hostile environment is not acceptable. To reinforce this position, make sure that everyone knows that the company has an effective complaint and investigation process, one that gives alternate avenues of access to report misconduct of supervisors, executives or owners.

While your own reaction to the employee’s recitation of facts may be a good “objectivity” filter, it is never appropriate to dismiss employee complaints based upon your perception of the law. It is always necessary to follow your company’s process carefully and expeditiously.

Do not wait for a hostile work environment claim to arise. Provide civility and anti-harassment training to all.

Encourage informal resolution by making sure that all are empowered to inform an offender that their conduct is unwelcome and must stop. However, do not require “self-help” as a precondition to an employee exercising policy rights.

Make sure to school your managers in means of obtaining the results that the company wants. Managerial statements construed as bullying or threatening by some may not be actionable, but they do increase workplace stress, decrease efficiency and burden human resource officers.

Reprinted with permission from an article submitted for publication in the August 2011 Southwest Area Human Resource Association newsletter.